End User Licence Agreement
IQ Solutions end user licence agreement (EULA).
END USER LICENCE AGREEMENT
Worldwide intellectual property laws and treaties protect the Software. Any reference hereunder to “sales” or “acquisition” or like terms notwithstanding, the Software is licensed, not sold, and rights granted hereunder are limited to the Software in object code only. No source code rights are granted hereby. You may not assign or otherwise transfer this EULA to any other party, without specific written permission from IDAPPCOM.
1. GRANT OF LICENCE. Under copyright law, you are not permitted to install or run the Software product ('the Software') or use the electronic material ('the Documentation') supplied to you without the permission of the Owner. In consideration of your accepting the terms of this agreement, the Owner grants you a non-exclusive right ('the Licence') to install and run the Software and use the Documentation as permitted by this Agreement. All references to the Software mean the object code only of the program(s) comprising the Software. You have no rights to distribute, copy, reverse-engineer, modify or adapt the Software unless such rights are clearly and specifically granted herein.
1.1 General Licence to Install and Use Software Product.
1.1.1 You may use the Software and the Documentation in connection with a single computer or such other number of computers as may be specifically licensed and for which licence fees have been paid, as reflected on licence records generated in connection with your acquisition of the Software ("Licence Record");
1.1.2 You may load the Software and use it only on a single computer which is under your control or such other number of computers as may be specifically licensed and also under your control.
1.1.3 You may use the Software for your personal use or in your business or profession. The licence granted hereunder may not be shared and permitting unauthorized access to, copying or use of the Software and the Documentation is beyond the scope of the licence and is therefore a breach of this Agreement.
1.2 Additional Licence Permitting Use of Software under a Subscription or Service Agreement. If you licensed the Software under a subscription ("Subscription Product"), the following additional licensing terms apply and supersede any inconsistent provision under section 1.1: During the term of your subscription only, you may install the Software on a single computer which is under your control or such other number of computers as may be specifically licensed and also under your control. The initial subscription period begins on the date you first activate your copy of the Subscription Product and ends at the end of the subscription period, as set forth under the Licence Record. You cannot use the Subscription Product on any computer after your subscription expires unless you renew or extend your subscription. By renewing or extending your subscription, you will be entitled to continue using the Subscription Product for a specified period beyond the date when your previous subscription would have otherwise ended. All the terms and conditions of this EULA will continue to apply to your use of the Subscription Product during any subsequent renewal periods unless otherwise specified.
1.3 End User Maintenance. In consideration for End User’s payment of the Initial Licence Fee and End User Maintenance Fee, IDAPPCOM will provide End User with End User Maintenance and updates for the Initial Period. Maintenance agreements are valid for a period of 12 months and are renewable annually.
1.4 Reservation of Rights. All rights not expressly granted are reserved by IDAPPCOM.
1.5 Separation of Component Parts. The Software Product is licensed as a single product and its component parts may not be separated, except as may be provided in the Documentation, unless expressly authorized by IDAPPCOM in writing
1.6 Third Party Software. The packet driver used in Traffic IQ Professional is based on a modified version of “Winpcap” an industry standard module (open source) that vendors use to enable the manipulation of adapters. All other controls and source code is developed by IDAPPCOM apart from the controls supplied as part of the Microsoft development environment.
2. ADDITIONAL RIGHTS, TERMS AND LIMITATIONS
2.1 Licence Fees. All licence fees (and, if applicable, subscription or service fees) you have paid are non-refundable, except in connection with a return of the Software as provided in the initial paragraph of this EULA or under section 6.1.
2.2 Intellectual Property Rights. All title and intellectual property rights in and to the Software and all elements and components, the accompanying printed materials, and any copies of the Software are owned by IDAPPCOM or its suppliers/licensors. If this Software contains documentation that is provided only in electronic form, you may print ten copies of such electronic documentation. You may not copy the printed materials accompanying the Software. IDAPPCOM retains all rights in and to any copy, translation, modification, enhancement, improvement, development, adaptation or derivative works of the Software, including all unauthorized work.
2.3 Copy Protection. The Software may incorporate copy protection technology to prevent the unauthorized copying of the Software or may require original media for use of the Software on the Device. It is unlawful and prohibited to make unauthorized copies of the Software or to circumvent any copy protection technology included in the Software.
2.4 Rental, leasing or commercial hosting. You may not rent, lease, lend or provide commercial hosting services to third parties with the Software, without IDAPPCOM's express written authorization.
2.5 Compliance. You agree to supervise and control use of the Software to ensure compliance with all terms and limitations under this EULA (including but not limited to compliance with the laws and regulations of all applicable jurisdictions in which you use the Software) and to maintain accurate records of the number and location of all users and copies of the Software and the number of storage devices used in connection with the Software (Compliance Data"). In this connection, you also agree to the following:
2.5.1 You agree to provide to IDAPPCOM summaries of updated Compliance Data, in a form reasonably required by IDAPPCOM, within thirty (30) days of any written request, and to furnish therewith written certification that your use of the Software at the time of the request complies with this EULA.
2.5.2 You agree to allow IDAPPCOM or its agents full access , on 14 days' notice and during normal business hours, to all of the devices on which the Software is loaded or from which it may be accessed ("Devices"), and to the site or sites on which Devices are located, to monitor your compliance with this section 2.5 and the other terms of this EULA; and
2.5.3 You agree to make all relevant employees, agents, advisers, consultants, group-companies, affiliates, sub-contractors and other parties who have use of or access to the Software aware of the provisions of this Agreement prior to such use or access, and shall ensure compliance by such users with this EULA.
2.6 You acknowledge that in the event that you have been granted a licence pursuant to this agreement for a Subscription Product we may without notice enable the Subscription Product so that it shall cease to operate at the end of the licence term in any event.
3. TERM AND TERMINATION
3.1 This EULA shall terminate automatically on the date (if any) specified on the Licence Record, unless extended by the prior mutual consent of the parties in writing. If no date is specified on the Licence Record, this EULA shall be perpetual subject to termination in accordance with subsections 3.2 below. You may terminate this EULA at any time by destroying the Software and the Documentation together with all copies in any form. However, no licence fee paid or owing for the Software shall be refunded or abated by virtue of such unilateral termination.
3.2 Furthermore, your Licence to use the Software will terminate automatically if you fail to comply with any term of this EULA. Unless applicable licence fees are paid in full, this EULA and all licences granted hereunder will also terminate without further action and may also terminate on notice by IDAPPCOM if you become unable to pay your debts or are otherwise insolvent, bankrupt, appoint an administrator, cease trading, become the subject of any liquidation or winding up action in any jurisdiction, enter into any arrangement with your creditors other than for the purpose of a solvent reorganisation or become the subject of any action under which a receiver or administrator is appointed by a court, regulatory agency or other authority or in the event that any local equivalent of the aforesaid arise in any jurisdiction. Upon expiration or termination of the EULA for any reason, you will immediately destroy the Software together with all copies in any form, including copies on your hard and back-up disks. Any use of any copies of the Software after expiration or termination of the Licence is unlawful.
3.3 Termination of this EULA shall be without prejudice to the accrued rights and liabilities of either party.
4. INDEMNITY. You agree to defend, indemnify and hold harmless IDAPPCOM, its subsidiaries, affiliates, distributors, licensors, suppliers, officers, directors, employees and agents from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from your use of the Software as well as from your failure to comply with any term of this EULA. You agree that IDAPPCOM shall have no liability whatsoever for any use you make of the Software.
5. US GOVERNMENT RESTRICTED RIGHTS. This Software is commercial computer software and the related documentation is commercial computer software documentation. Thus, if you are an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies to the extent said regulations apply to solicitations within the scope of said regulations. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.
6. LIMITED WARRANTY
6.1 LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US, EU AND CANADA: IDAPPCOM warrants that the Software, when used properly, will perform substantially as described in the accompanying materials and documentation for a period of thirty (30) days from the date of receipt and that the media on which the Software is recorded will be free from defects in material and workmanship under normal use for the same period.
If an implied warranty or condition is created by your state/jurisdiction and federal/national or state/provincial law prohibits disclaimers of it, you may also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.
Any supplements or updates to the SOFTWARE PRODUCT, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the initial thirty (30) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
6.1.1 LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by IDAPPCOM, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES. The terms of Section 8 below ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
6.1.2 YOUR EXCLUSIVE REMEDY. The entire liability of IDAPPCOM and its suppliers and your exclusive remedy relative to any Software, that does not meet this Limited Warranty and that is returned to the original place of purchase with a copy of your proof of purchase, shall be, at IDAPPCOM's sole option exercised subject to applicable law, either (a) return of the price paid (if any) for the Software, or (b) repair or replacement of the Software. You will receive the remedy elected by IDAPPCOM without charge, except that you are responsible for any expenses you may incur (e.g. cost of returning the Software to IDAPPCOM). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or twenty (20) days, whichever is longer.
6.2 LIMITED WARRANTY FOR SOFTWARE PRODUCTS ACQUIRED OUTSIDE THE EU, US AND CANADA. FOR THE LIMITED WARRANTIES AND SPECIAL PROVISIONS PERTAINING TO YOUR PARTICULAR JURISDICTION, PLEASE REFER TO THE WARRANTY PROVIDED TO YOU WITH THE SOFTWARE DOCUMENTATION. IF NO SPECIAL AND SEPARATE WARRANTY IS APPLICABLE, THE WARRANTIES OF IDAPPCOM AND ITS SUPPLIERS SHALL BE LIMITED AS PROVIDED HEREIN TO THE FULLEST EXTENT ALLOWED UNDER THE LAWS OF THE APPLICABLE JURISDICTION. IDAPPCOM HEREBY EXCLUDES ALL IMPLIED WARRANTIES TO THE FULLEST EXTENT ALLOWED BY LAW IN EACH JURISDICTION IN WHICH THE SOFTWARE IS USED UNDER THIS EULA.
7. GENERAL DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY THAT APPEARS IN SECTION 6 ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IDAPPCOM AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. IN ADDITION, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IDAPPCOM OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER. IDAPPCOM SHALL NOT BE LIABLE FOR THE FOLLOWING TYPES OF LOSS IN ANY EVENT, BE THEY DIRECT OR CONSEQUENTIAL DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER AND ANY OTHER LOSS ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF IDAPPCOM OR ANY SUPPLIER, AND EVEN IF IDAPPCOM OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF IDAPPCOM AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY IDAPPCOM WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF 110% OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $250.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 6, 7, AND 8, ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. APPLICABLE LAW. This EULA shall be governed by the laws of England.
You consent and submit to the jurisdiction of the applicable courts, as provided above, and agree to service of process in accordance with the applicable court rules. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
11. GENERAL PROVISIONS. This Agreement and the terms of any Licence Record provided to you (if any) combine to represent the complete agreement concerning this licence between the parties and supersedes all prior agreements and representations between them. This EULA may be amended only by a writing executed by both parties. If any provision of this EULA is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of IDAPPCOM to act with respect to a breach of this EULA by you or others does not constitute a waiver and shall not limit IDAPPCOM's rights with respect to such breach or any subsequent breaches. This EULA is personal to you and may not be assigned or transferred for any reason whatsoever without IDAPPCOM's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. IDAPPCOM expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.